Conference Calendar AUGUST HOLLAND, also known as August R Holland v. Dhirajlalandis Patel, Md

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
August 21, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-11266
Conference Calendar
AUGUST HOLLAND, also known as August R Holland
Plaintiff-Appellant
v.
DHIRAJLALANDIS PATEL, MD; F BAXTER, Facility Health Administer;
R FILLION, RN Director of Nurses; TIMOTHY SIMMONS, Senior Warden
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:06-CV-5
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
August Holland, Texas prisoner # 615677, appeals the dismissal as
frivolous and for failure to state a claim of his 42 U.S.C. § 1983 civil rights
lawsuit. He renews his argument that Dr. Patel was deliberately indifferent to
his medical needs by denying him the use of a walking cane. For the first time
on appeal, Holland also argues that he has been discriminated against because
of his race. This court will not consider the newly raised claim. See Stewart

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No. 06-11266
2
Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Centers, Inc., 200 F.3d 307, 316-17
(5th Cir. 2000). Holland does not renew his claims regarding the denial of the
use of a handicapped shower or of a transfer to a medical unit, nor does he brief
any argument challenging the dismissal of his claims against the other
defendants for lack of personal involvement, and those claims are waived. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9).
Holland’s assertion that he required a cane and that Dr. Patel wrongfully
took his away amounts to no more than a mere disagreement with the medical
treatment he received or, at most, a claim for negligence and was thus properly
dismissed. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). The
instant appeal is without arguable merit and is therefore dismissed as frivolous.
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. Both the
district court’s dismissal of Holland’s complaint and the instant dismissal count
as strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 387 (5th Cir. 1996). Holland is cautioned that if he accumulates three
strikes under § 1915(g), he will not be able to proceed in forma pauperis in any
civil action or appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.

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